Rice Lake Developments Inc. v. Ontario (Environment, Conservation and Parks), 2025 CanLII 9153

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 06, 2025

CASE NO(S).: OLT-24-000709

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Rakesh, Rajni and Mohit Gupta and Rice Lake Developments Inc

Appellant: Donna Avery and Gregory Hayes

Appellant: Dawson Massey

Appellant: Ronald and Lisa Lisqum

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to retain a qualified person to conduct an environmental site assessment which will assess and delineate the contaminants of concern in soil and groundwater which originate at and from the site

Reference No.: 1-20755483

Property Address: 1376 County Road 2

Municipality/UT: Leeds and the Thousand Islands/ Leeds and Grenville

OLT Case No.: OLT-24-000709

OLT Lead Case No.: OLT-24-000709

OLT Case Name: Rice Lake Developments Inc. v. Ontario (Environment, Conservation and Parks)

Heard: January 15, 2025 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Ministry of the Environment, Conservation and Parks (“MECP”)

A. Landre

Ronald Lisqum and Lisa Lisqum

D.K. Gibson

Donna Avery and Gregory Hayes

D.K. Gibson

Dawson Massey

D.K. Gibson

M. Mannarino (in absentia)

Rakesh Gupta, Mohit Gupta, Rajni Gupta, and Rice Lake Developments Inc.

Rakesh Gupta*

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JANUARY 15, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a case management conference (“CMC”) held on January 15, 2025 by video hearing. The history of this matter is summarized in the Decision issued September 26, 2024 and need not be repeated here. The underlying appeals separately filed by the persons/entities described above (“Appeals”) are with respect to the MECP Director’s Order dated June 28, 2024 (“Director’s Order”).

2The Director’s Order relates to the property located at 1376 County Road 2, in the Township of Leeds-Grenville-Thousand Islands (“Site”) and alleges that all Appellant Parties must take certain steps to address allegedly contaminated soils etc. present at the Site.

3Prior to the CMC, the Director advised the Parties and the Tribunal by correspondence, the following (below emphasis added):

In accordance with the Tribunal’s decision issued on September 6, 2024, the Director is hereby providing notification to the Tribunal and the parties regarding its position on a stay of Director’s Order 1-20755483 (the “Order”) Item Nos. 1 through 9.

With respect to Order Item Nos. 1-6:

Earlier this fall, further samples were collected from two off-site drinking water wells and an off-site dug well in close proximity to 1376 County Road 2 in Leeds and the Thousand Islands (the “Site”). The samples were analysed and petroleum hydrocarbon contamination was detected in the dug well sample.

There is not enough evidence to establish that any of the statutory bars to a stay exist in this case as set out in section 143(3) of the EPA and section 143(2) does not apply.

The Director wants to have this matter addressed on its merits as soon as possible given the existing contamination which is believed to be migrating and impacting off-Site properties. Therefore the Director is consenting to a stay of Order Item Nos. 1-6.

With respect to Order Item Nos. 7, 8 and 9:

The Director has prepared a Certificate of Requirement to be registered on the Title to the property. The Director understands that the appellants Donna Avery and Gregory Hayes did not proceed with the registration due to the cost associated with this registration. Therefore the Director intends to carry out the registration required by Item No. 8 in accordance with section 147 of the EPA on behalf of these appellants, and the registration cannot be done with a stay in place on this item. Item No. 9 becomes redundant in the event the Director registers the certificate.

Finally there should be no stay on Item No. 7 requiring the appellants Donna Avery and Gregory Hayes, in the event that there are any dealings with the Site, to provide a copy of the Order to every person acquiring a interest in the Site.

4The purpose of the CMC was to establish a procedural order (“PO”) governing both the eventual hearing of the Appeals and any motions intended to be commenced prior to that hearing. It was clear that further work was needed in order to finalize the PO, which the Parties agreed to undertake. Subsequent to the CMC, the Parties delivered a further draft PO.

5The Parties sought a three-day hearing to commence in 2025. After some discussion it was agreed that a set of July dates was reasonable. The Tribunal has scheduled the hearing to commence for a period of three days.

6The hearing is scheduled to proceed by video on Monday, July 28, 2025 at 10 a.m.

7Parties are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/927921077

Access code: 927-921-077

8Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

9Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1-647-497-9391 or (toll-free) +1-888-299-1889. The access code is: 927-921-077.

10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

11Some discussion ensued with respect to necessary disclosure by the Director. Counsel for the Director noted that the key documentation was attached to the Director’s Order but conceded that additional documentation and information exists – including recent water and soil sample, and other lab, results, which will be disclosed shortly after the CMC. Of course, the PO will feature exchange dates for witness statements and expert reports by all Parties well before the hearing. In the event that any disputes arise with respect to the evidence to be delivered, any Party will have an opportunity to bring a motion to the Tribunal in accordance with the OLT Rules of Practice and Procedure.

12Counsel for the Director indicated that she has no instructions to consider adding other parties to the Director’s existing Order. At a later date, subsequent to the hearing, it may be that one or more Parties may seek contribution from other entities in separate proceedings. This is not a matter to be dealt with by the Tribunal in this proceeding.

13As a final matter, counsel for four of the Appellants, Mr. Gibson, noted that it may be advantageous to consider a mediation. Counsel for the Director agreed that the Director may consider this. The Tribunal urged the Parties to reach out to the Case Coordinator to request that the OLT Mediation group be contacted in this regard well before the scheduled hearing.

ORDER

14THE TRIBUNAL ORDERS THAT:

(a) the Procedural Order, appended as Attachment A to this Decision, shall govern the conduct of this proceeding;

(b) the Director’s Order at issue in these Appeals, items 1 through 6 inclusive, shall be stayed until the completion of the hearing of the Appeals filed in this proceeding.

15This Vice-Chair shall remain seized of this matter for all events save and except for the final hearing of the Appeals in this proceeding and any mediation that may be convened by the Tribunal.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT A

CASE NO(S).: OLT-24-000709

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Rakesh, Rajni and Mohit Gupta and Rice Lake Developments Inc

Appellant: Donna Avery and Gregory Hayes

Appellant: Dawson Massey

Appellant: Ronald and Lisa Lisqum

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to retain a qualified person to conduct an environmental site assessment which will assess and delineate the contaminants of concern in soil and groundwater which originate at and from the site

Reference No.: 1-20755483

Property Address: 1376 County Road 2

Municipality/UT: Leeds and the Thousand Islands/ Leeds and Grenville

OLT Case No.: OLT-24-000709

OLT Lead Case No.: OLT-24-000709

OLT Case Name: Rice Lake Developments Inc. v. Ontario (Environment, Conservation and Parks)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on July 28, 2025 at 10 am by videoconference.

3. The parties’ initial estimation for the length of the hearing is 3 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. The parties are to exchange copies of all relevant documents over which privilege is not being asserted by March 1, 2025.

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before March 17, 2025 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before June 16, 2025 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before July 4, 2025 .

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

14. On or before May 28, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

15. On or before May 28, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before June 9, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before July 10, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 10, 2025.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 14, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically unless otherwise directed. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

TRIBUNAL REGISTRAR

ATTACHMENT 1

LIST OF PARTIES

Appellants

Rakesh, Rajni and Mohit Gupta and Rice Lake Developments Inc.

Email: rakesh@gtalands.com

Dawson Massey

Email: dawsonmassey@cmail.carleton.ca

Donna Avery and Gregory Hayes

Email: donnaavery58@gmail.com

Email: irw5infamily5@gmail.com

Ronald Lisqum and Lisa Lisqum

Email: ron.lisqum@gmail.com

Counsel for Donna Avery, Gregory Hayes, Ronald Lisqum, Lisa Lisqum, and Dawson Massey

Ken Gibson

Gibsons LLP

1520 - 360 Albert Street

Ottawa ON K1R 7X7

Telephone: (613) 238-8865 (x305)

E-mail: dkg@gibsonslaw.com

Respondent

Director, Ministry of the Environment, Conservation and Parks

Email: cathy.chisholm@ontario.ca

Counsel for the Director

Amanda Landre

Ministry of the Attorney General

Ministry of the Environment, Conservation and

Parks Legal Services Branch

135 St. Clair Ave W

Toronto ON M4V 1P5

Phone: 437-774-3647

Email: amanda.landre@ontario.ca

ATTACHMENT 2

ISSUES LIST

Proposed Issues – Director:

1. Are the requirements specified in the Director’s Order necessary and/or advisable to prevent, decrease or eliminate any adverse effects that may result from the presence or discharge of Contaminants of Concern in, on or under the Site?

Proposed Issues – Donna Avery, Gregory Hayes, Ronald Lisqum and Lisa Lisqum:

1. Whether the parties who previously exercised ownership and/or control over the 1376 County Road 2 property, as identified in the Phase II Environmental Site Assessment of January 2013, should be included in the Director’s order.

Proposed Issues – Rakesh, Rajni, and Mohit Gupta and Rice Lake Developments Inc.

1. If Rakesh, Rajni, and Mohit Gupta and Rice Lake Developments Inc. should be excluded from these proceedings.

We respectfully submit that we do not have means to engage a lawyer to file draft procedural orders or legal documents. MOE had known the problem for so many years, butr they did not do anything to alert the buyers. Even the township of Leeds did not give any such warning when they sold the property in a Tax Sale.

We had earlier submitted that our names should be deleted from MOE order based on the following facts:

Interest and Facts

On July 30, 2019, Rajni Gupta purchased a residential house for $56,000 through a tax sale from the Township of Leeds and Thousand Islands. Due to the nature of tax sales, there was limited time and resources to conduct a comprehensive environmental assessment.

Additionally, the property was advertised as a residential house, which did not suggest any commercial use. A Property Detailed Report (attached) pulled in June 2019 from MPAC showed the property as residential. Also, the property tax bill (attached) shows the property as a residential house.

As part of our due diligence, we performed a title search prior to the purchase, which revealed no notice of contamination on the title (Parcel Register dated July 12, 2019, attached). The property appeared to be a typical residential house with no visible signs of contamination. The site was devoid of any structures that might indicate prior industrial use.

The house was not inhabitable and needed extensive repairs and renovations. Consequently, Rajni Gupta transferred the house to Rice Lake Developments Inc., a holding corporation owned by the family of Rajni Gupta, including spouse Rakesh Gupta and son Mohit Gupta, in January 2020. Rice Lake Developments Inc. then listed the house for sale on MLS in March 2020 and sold it to Dawson Massey on October 1, 2020, for $60,000 on an "AS IS" basis. Rice Lake Developments Inc. and Rajni Gupta owned the property for a brief period of 14 months.

1. Challenged Parts of the Order We are challenging the parts of the MOE Director’s Order that hold us liable for the contamination discovered on the property.

2. Potential Environmental Harm We believe that the decision to hold us liable could lead to an improper allocation of responsibility, potentially delaying effective remediation and causing further environmental harm.

3. Reasonableness of the Decision We contend that no reasonable person, having regard to the relevant law and government policies, could have made the decision to hold us liable given the facts of our due diligence efforts, lack of knowledge of contamination, no contribution by us to cause contamination and the nature of the tax sale.

Grounds for Appeal

1. Innocent Purchaser Defense: We assert that we were innocent purchasers who had no knowledge of any contamination at the time of purchase. The tax sale process significantly restricted our ability to perform due diligence. Despite these limitations, we conducted a reasonable inspection under the circumstances, which did not reveal any signs of environmental hazards. Our inspection included a thorough visual examination of the property, which showed no indication of contamination or industrial activity.

2. No Knowledge and Reasonable Steps:Our due diligence included a comprehensive visual inspection of the property and a title search. Both efforts did not suggest any prior contaminating use. The title search revealed no registered notices of contamination, and our inspection showed no visible signs of environmental issues. Given these findings, we could not reasonably have been expected to know about any contamination. Our actions were consistent with what a prudent and responsible buyer would undertake under similar circumstances.

3. Historical Use and Demolition:The property's previous uses and the complete demolition of prior structures obscured any potential indicators of contamination. Historical records indicate that any structures which might have been sources of contamination were demolished long before our purchase. This complete removal of prior structures left no visible traces of past industrial activity, making it impossible for us to detect any existing contamination during our ownership period.

4. Tax Sale Purchase Context: The tax sale context provided limited information and time for a full environmental assessment. This unique circumstance should be considered in evaluating our responsibility. We request that the Ministry considers the constrained conditions under which the property was acquired, acknowledging the inherent limitations in the due diligence process in such situations.

5. Proportional Liability: We held the property for only one year, during which no industrial activities occurred that could contribute to contamination. We did not cause or in any way contributed to any contamination. The brevity of our ownership and the absence of any contributory actions on our part should exempt us from liability. We believe that we should not be held liable compared to previous and subsequent owners who may have had more involvement in the property's industrial history. When we purchased the house, it was in a pre-existing condition.

6. Certificate of Requirement was not registered on the Title: The Ministry of Environment and the Township of Leeds failed to register the Certificate of Requirement on the property, at the time the contamination happened and when discovered. This lapse by MOE significantly impacts the validity of the Director’s Order.

7. MOE DO is not issued to parties who were directly involved like original owners the family of Charles Michael Eugene Lynch. Their ownership period 1950s to the 1980s when the contamination occurred are not in the DO. The Township of Leeds and Thousand Islands who sold the property are not in the DO. CIBC is not in the DO. Mr Paul Cadeux is not in the list. With all these deficiencies the MOE DO is a faulty order implicating us who are innocent parties and should be stayed permanently.

8. Medical Condition Additionally, we wish to inform you that Rakesh Gupta is currently battling Stage 4 cancer. Attached is a medical letter from his oncologist detailing his condition. This significant health challenge further underscores our inability to address the contamination issues and should be considered in the resolution of this matter. This DO is causing a lot of stress in our family at a critical time, when we are all battling with a very serious health condition.

9. Desired Outcome We respectfully request OLT and the Ministry to reconsider the assignment of liability in this case, considering our brief ownership, no role in causing or contributing to the problem, our due diligence, lack of knowledge, and personal circumstances that warrant complete relief from the MOE demands.

ATTACHMENT 3

ORDER OF EVIDENCE

Please note: The Director, MECP is willing to proceed with its evidence first given that there are self-represented parties; however, as the respondent in the appeal, the Director reserves a right of reply.

1. Director, MECP

2. Donna Avery, Gregory Hayes, Ronald Lisqum, Lisa Lisqum and Dawson Massey

3. Rakesh, Rajni and Mohit Gupta and Rice Lake Developments Inc.

ATTACHMENT 4

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.